Ninth Circuit Applies Suspension Clause to Expedited Removal Order

The Ninth Circuit has determined that the Suspension Clause requires that an individual placed in expedited removal proceedings be given a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law, and the current limited review provided for by statute does not satisfy this requirement, as it only allows for review of whether an individual is a non-citizen, whether he was actually removed via the expedited removal process, and whether he is a lawful permanent resident or other status that exempts him from the expedited removal process.

The court noted that at its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest. Therefore, when evaluating whether a substitute is adequate, the court must consider the rigor of any earlier proceedings and the intended duration of the detention and the reasons for it.

In the instant case, the petitioner contended that the government denied him a fair procedure, applied an incorrect legal standard to his credible fear contentions, and failed to comply with the applicable statutory and regulatory requirements. “The core of his claim is that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim.” The court concluded that the Suspension Clause requires review of these issues because the existing statutory review does not meaningfully address these issues. Past “cases suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders, including expedited removal orders.”

The full text of Thuraissigiam v. USDHS can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/18-55313.pdf

Third Circuit Finds Jurisdiction to Review Expedited Removal Orders

The Third Circuit has determined that the jurisdiction-stripping provision of the INA operates as an unconstitutional suspension of the writ of habeas corpus as applied to Special Immigrant Juvenile (SIJ) designees seeking judicial review of orders of expedited removal.  "Because SIJ status reflects Petitioners’ significant ties to this country and Congress’s determination that such aliens should be accorded important statutory and procedural protections, Petitioners are entitled to invoke the Suspension Clause and petition the federal courts for a writ of habeas corpus. We further conclude that because the expedited removal regime does not provide an adequate substitute process, the INA’s jurisdiction-stripping provisions effect an unconstitutional suspension of the writ as applied to Petitioners."

The court recognized that SIJ designees enjoy certain statutory rights.  "Yet revocation of these statutory rights without cause, notice, or judicial review is precisely the consequence of expedited removal. Despite their SIJ classification, the children, once removed, would be unable to adjust status because doing so requires physical presence within the United States, and further, they would be barred from reentry for at least five years. Moreover, Petitioners’ expedited removal would be based on a ground for inadmissibility—lack of valid immigration documentation—from which Petitioners are expressly exempted by virtue of their SIJ status. In short, expedited removal would render SIJ status a nullity."

The full text of Osorio-Martinez v. Attorney General can be found here:

http://www2.ca3.uscourts.gov/opinarch/172159p.pdf